Brunner Test Student Loans: How Courts Decide Hardship

The Brunner Test is the legal standard most bankruptcy courts use to decide whether student loans create an “undue hardship” that qualifies for discharge. It asks three things:

• whether repayment prevents a minimal standard of living,

• whether that hardship is likely to continue, and

• whether the borrower has acted in good faith.

Courts interpret these prongs differently depending on the circuit, and a minority use an alternative test called the Totality of the Circumstances.

Related: How Hardship Discharge Fits Into the Broader Bankruptcy System

The Brunner Test comes from a 1987 case, Brunner v. New York State Higher Education Services Corp., where the court created a three-part rule for deciding whether student loan repayment creates an “undue hardship.” That framework remains the dominant legal standard in most bankruptcy courts.

The test has three prongs.

First, the borrower must show that repaying the loans would prevent a minimal standard of living as courts define it. Second, the financial strain must be likely to persist for a significant portion of the repayment period. Third, the borrower must demonstrate good faith in their overall approach to the debt.

Combined, these prongs define the legal standard. How borrowers prove them is handled separately under each court’s evidence rules.

Related: What Borrowers Must Actually Prove to Meet the Undue Hardship Standard

Courts interpret the Brunner Test through their own precedent, and that produces meaningful differences in how the three prongs are applied.

Some courts read the rule narrowly and require strict showings on minimal living standards, long-term financial strain, and good faith.

Others take a more modern approach, focusing on whether the borrower’s overall circumstances meet the statute’s purpose rather than on older, rigid phrasing.

Judges increasingly reject language like “certainty of hopelessness” and recognize that Brunner does not demand permanent or extreme hardship. The underlying legal test remains the same, but how courts evaluate each prong has become more context-driven.

The Department of Justice now uses an attestation process when reviewing federal student loan cases, but that administrative procedure does not change the legal standard judges apply.

Most bankruptcy courts use the Brunner Test to decide student loan hardship, but not all circuits follow the same doctrinal framework. Brunner is the controlling standard in the Second, Third, Fifth, Seventh, Ninth, and Eleventh Circuits.

The Eighth Circuit applies a different approach — the Totality of the Circumstances test — which does not use fixed prongs. Instead, courts weigh all relevant facts under a broad equitable inquiry.

Other regions, including the Fourth and Sixth Circuits, show mixed application. Courts there may reference Brunner, adapt its elements, or rely on an analysis that resembles Totality.

Related: When Private Student Laons Require a Hardship Case